May 31, 2005

Graduations, Invocations, Observations

Blogging has been low for the last few days due to much travel. On Thursday I drove to Austin* to get information for a pro bono project, and had to come back Friday in time for my cousin's high school graduation that evening. He graduated from the same school as my little sister and I, but the ceremony was held at the Expo Center (or as my older sister calls it, "the cowbarn"), where the rodeo and livestock exhibitions happen, because the stadium's grass was being replaced with Astroturf. My uncle fulminated, "Why couldn't they wait until after graduation? This just proves that sports are more important to them than academics." Not sure if he was saying this for rhetorical effect or if he really has managed to live in Texas for over a decade without realizing that fact.

Coming home always provides the opportunity to observe what has changed since my secondary school days, and what hasn't. Changed: many more kids with Spanish last names. Unchanged: no church-state separation. The National Honor Society induction still is held at a Baptist church with several invocations of God's place in our lives, and a student still leads a prayer at graduation. Both are constitutional at this point: NHS is a private organization and free to have its inductions wherever and however it wants, and while the Supreme Court has bumped athletic prayer (a ruling that my schools ignored), the Fifth Circuit OKed nonsectarian, nonproselytizing invocations, and that's the precedent that counts until SCOTUS chooses to settle the circuit split.

My little sister's summa cum laude graduation began Friday night with the famous Brown Dance, but we had to miss that as well as her Phi Beta Kappa** ceremony Saturday morning while we were in transit. Arriving just in time to snap dozens of pictures of her before the baccalaureate service, we watched the big screens on College Green that showed the graduates' assembling in the First Baptist Church in America, which the minister noted really is the first, founded by Roger Williams in 1638. The hours that followed were filled with Chinese dragon dance; Muslim calls to prayer delivered by two young women; a brief Zen Buddhist discourse; Japanese lute; an operatically sung Latin hymn; Jewish, Hindu and Christian prayers and blessings; and a religiously-themed address by Phylicia Rashad, aka Mrs. Cosby.

(My undergraduate institution doesn't give honorary degrees, which means that we miss some opportunities to rub shoulders with celebrities. Brown gave honorary degrees to Rashad, Dave Eggers, an Afghan humanitarian, Christo and Jean-Claude, though the biggest applause went to the elderly alumnus who had given millions to support undergraduate scholarships.)

Charles Haynes suggests that such baccalaureate services may be the best option for those who wish to include religion in public schools' graduations too:

What about public acknowledgement of God during the time of graduation? The best way for that to happen is at a baccalaureate service for those who wish to attend. As long as it is sponsored by community groups -- and not by the school -- the baccalaureate can include real prayers and sermons. It can even be held at the school if community groups are allowed to use school facilities after hours.
It strikes me that authentic prayer at a baccalaureate service does more to acknowledge God than watered-down, edited prayers at a graduation ceremony.

Perhaps some would see the interfaith baccalaureate service as inappropriate, but it struck me as the perfect way to acknowledge the variety of traditions that have taken root at Brown since its initial founding as a Baptist university, and one worthy of imitation by my high school.

The student speakers at Sunday's commencement also invoked religion. One did so in a similarly multicultural fashion: "Star-dust scattering in the eyes of our loved ones so they cry and cry out -- 'Praise Jesus,' Allah, Yahweh, Buddha, Ogun, Jah, the Most High, or whatever spirit moves them." The other mentioned that his ignorance of others' religions had been remedied, while his own belief had been honed:

I knew the Old Testament by heart, but nothing about Judaism. In church I sang soulful southern Black Gospel side-by-side with my Mama and sister, but the concept of Mass was completely foreign to me. [...] We talked ... about attending a Chinese New Year celebration, lighting candles at Hanukkah and the Jewish Torah study that I attended. [...] I learned that if I was going to be a good Christian, I needed to model my life directly after Jesus Christ, not after everyone claiming to be a Christian.

The second speaker's comments about political conflict presented an interesting view of how contemporary legal battles appear to educated laymen: "I saw how hypocritical it was for conservatives to seek federal intervention on the issue of same-sex marriage in Massachusetts, but plead for states' rights on the issue of the Ten Commandments Monument in the Supreme Court Building in Alabama." [This comment was followed by applause and cheers from his fellow students.]
"Likewise, I saw the hypocrisy in liberals crying for states' rights on the issue of same-sex marriage but demanding federal intervention to remove the monument in Alabama."

Technically, one could attempt to clear liberals of the hypocrisy charge in this example by noting nuances such as marriage's being a state concern while violations of the U.S. Constitution's First Amendment as applied to the states through the Fourteenth Amendment are properly a federal question. However, this would be valid only insofar as the liberal who cried for state rights in one situation but not another actually stuck to such traditional designations, and in any case does little to address the appearance of inconsistency.

This is the advantage that Federalists appear to have; rather than having to come up with a new justification for each policy preference, they claim to hold to a particular interpretation (originalism, textualism, whatever it is that the Chicago folks do) even if the heavens may fall. Of course, the heavens rarely do seem to fall for Federalists, as they tend to pick an interpretation that generally leads to the results they'd like. For example, libertarians reinvigorate the Ninth Amendment's text in order to maximize all freedoms, and conservatives read the Ninth with original intent so that economic liberties remain while social liberties do not. Owen Courreges declares that the Amendment merely states a rule of interpretation and urges, "Itís time for everyone to admit that the 9th Amendment isn't oneís own personal bill of rights."

I haven't figured out the type of Federalist one can be to get liberal results all around, but working on it fills the time during processions.

* Note for future legal research: do not bother state legislators' staff on the last couple days of the session when they're still hammering out school funding. Even those whose ingrained sense of courtesy kept them from being impatient were falling asleep in the middle of sentences because they'd been working such long hours.

** That is indeed reflected glory I'm enjoying, as I never came anywhere near the GPA level necessary for graduating with honors.

May 24, 2005

Today / 05.24.05

Race, Religion Etc. Part II

As I was deleting old emails, I ran across a discussion I'd had with Will Baude last fall that was touched off by his post regarding the nullification of racist jury verdicts. He said there, "[T]he general argument is that juries fall quite clearly on the state- side of the state-private actor distinction. (Which helps explain the Batson 14th Amendment rule that you can't keep blacks off of juries, even via peremptory challenges.) [...] Under this analysis, then, are juries actually required to obey all of the strictures of government scrutiny? Leave aside the evidentiary questions for a moment: would it be unlawful for a jury to convict or acquit a defendant because the defendant or victim were female? jewish? a libertarian?"

From what I can tell through Lexis, the U.S. Supreme Court has extended Batson's holding regarding the unconstitutionality of racial discrimination in juror selection to gender discrimination (J.E.B. v. Alabama ex rel. T.B.), but not explicitly to religious and political discrimination. When the question came up in State v. Davis, 504 N.W.2d 767, SCOTUS denied cert over Thomas's dissent, joined by Scalia. However, some state courts have done so. Connecticut has tread a particularly thin line on this issue, declaring in State v. Hodge, 248 Conn. 207, that dismissing jurors based on their religious affiliation is unconstitutional, and in State v. Dehaney, 261 Conn. 336, that strikes based on religious belief are permissible. For example, one cannot strike a Catholic from a capital murder jury on the basis of identifying as a Catholic, only on the basis of actually agreeing with the Church's opposition to execution.

As I noted in this post, Scalia regards religious bias as being on the same level as racial bias, and the Connecticut distinction appears to be an attempt to distinguish between religion of the type that is comparable to race and gender, and religion of the type that is comparable to politics.

May 23, 2005

So Much for Coker

Horror aside, my first reaction to this story about widespread sexual abuse of children was to challenge the accuracy of this statement: "They are charged with aggravated rape of a child under 13 -- a charge which, if convicted, can carry a death sentence in Louisiana, authorities said." I thought I remembered from criminal law that Coker v. Georgia had said that the death penalty for rape was unconstitutional.

It did -- when the rape was of an adult woman. The U.S. Supreme Court has not ruled on the constitutionality of execution for raping children, and Louisiana continues to make it a capital offense at the discretion of the prosecutor: " if the victim was under the age of twelve years [...] And if the district attorney seeks a capital verdict, the offender shall be punished by death or life imprisonment at hard labor without benefit of parole." The law was upheld by the Louisiana Supreme Court in State v. Wilson (685 So. 2d 1063, 1996), and SCOTUS refused cert in Bethley v. Louisiana.

Recent U.S. Supreme Court death penalty jurisprudence has focused on the characteristics of the criminal. Having what is considered to be a child-like mind due to mental retardation, or being under the age of 18, now excuse defendants from execution. Special status of victims, on the other hand, has not been much discussed. The Louisiana aggravated rape statute, like the Texas aggravated assault statute noted in this post, perceives the crime to be more serious if committed against an elderly, disabled or underage person.

Aside from tossing capital punishment completely, proportionality might be the renewed frontier in limiting execution. The U.S. Supreme Court may end up going to back to the issue of what crimes merit the death penalty, granting cert to challenges made on the grounds of insufficient aggravating circumstances. The Indian Supreme Court has declared that execution should be given only in "the rarest of rare cases," though what that means has been difficult to determine. Concerns about the large number of death row inmates, particularly considering how expensive they can be, could provide political rationales for making capital sentences less routine in America.

(Though in the Lots o' Executions Sweepstakes, even Texas falls behind Thailand, which has installed death row webcams.)

Juxtaposition in the Mailbox

I skimmed the speech, and all I will say of it is that it leaps from an apparent inability to grasp metaphor to quoting Hayek and Ayn Rand, who would have approved of their use by Brown, and Buffalo Springfield, who probably would not. Just as I was thinking that laissez-faire economics notwithstanding, at least Brown didn't seem like a cultural reactionary, I came across the theory that women voted for Clinton because he'll keep them from having to get married in order to have children.

The second e-mail was MoveOn's "emergency petition to save our courts" (i.e., to save the filibuster in order to keep people like Brown from sitting on a federal appellate or Supreme bench), forwarded by a friend from undergrad. She wrote, "I'm passing this on because I believe no matter what party you belong to, the system of checks and balances must remain in effect. So if you agree with any part of the message below, please follow the link to sign the petition."

May 20, 2005

Silver Lining to the Backlash

Someone in the office of my state senator e-mails me regularly to tell me what Todd Staples has been doing. His latest dido is sponsoring an amendment to the Texas Constitution that will restrict marriage, civil unions and domestic partnerships to male-female couples: "Marriage in this state shall consist only of the union of one man and one woman. This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage."

It has passed the House and may well pass the Senate before I get home on Sunday, at which point it will go before the voters on November 8 and I'll most likely cast anotherfutilevote and watch Texas's constitution add anotherstupid amendment. Last time the Lege was in session, they passed a regular Defense of Marriage law, but I guess they think they'd better kick it up a notch to constitutional amendment.

One bright spot, though; at least public norms have changed enough that instead of hinting darkly at strange and unnatural relationships, Sen. Staples feels compelled to say, "There is a distinction between the right to intimate association and the right to have the government recognize or subsidize a particular form of relationship [...] and this law would not prohibit private contracts to appoint guardians and arrange rights for medical decisions and life insurance policies." It's the minimum of decency to acknowledge that people in same-sex relationships would like to enjoy the benefits and responsibilities of marriage, but with people like Rick Santorum in the U.S. Senate, I appreciate having people with even that bare scraping of humanity representing me.

May 19, 2005

Race, Religion, Sex and Politics

While in the Journal of Gender & Law's office, I was puzzled to see that someone had tacked up a quote from Scalia's Romer dissent; apparently it's been up for a long time and I'd just never noticed it before. It's the first paragraph of the opinion and has the snappy turns of phrase that one expects of a Scalia dissent, but I find the first sentence of the second paragraph more interesting: "In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago, see Bowers v. Hardwick, and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias."

Religious bias is on the same constitutional plane of reprehensibility as racial bias? Obviously the First Amendment prohibits the government from impeding the free exercise of religion, but it also prohibits impeding the freedom of speech, and we still have the right to discriminate privately against people whose speech we find objectionable. Surely if we're going to look for parallels in the Constitution to the prohibition on racial bias, we ought to look at sex rather than religion. Private religious discrimination doesn't strike me as being equal to racial discrimination, though it does have the same status in accommodations and employment through the Civil Rights Act of 1964.

Because I consider one's religion to be like one's politics -- a chosen mentality instead of an inborn characteristic -- I don't think it deserves the same level of protection as race or gender. This isn't to say that I would want people to have been able to fire Muslims in the wake of September 11, but I also wouldn't have wanted Communists to be blacklisted during the Cold War, and there was no barrier to that. Scalia's particular phrasing is worth noting: "opposition to homosexuality" versus "religious bias." Apparently discriminating against homosexuals is merely evidencing one's opposition to homosexuality, whereas discriminating against Muslims is bias, rather than a way to show one's opposition to Islam.

Today / 05.20.05

Today in History (1996) - The Supreme Court rules in Romer v. Evans that an amendment to the Colorado constitution passed by referendum, which would have prevented any city, town or county in the state from taking any legislative, executive, or judicial action to protect the rights of homosexuals, violates the 14th Amendment's Equal Protection clause because it serves no legitimate government interest but instead is an expression of animus.

May 18, 2005

On the Cultural Defense: Striking a Delicate Balance Between Criminal Law Objectivism and Multiculturalist Moral Relativism

By way of quick introduction, my name is PV, which is the abbreviated name of my weblawg. I am entering my third year of law school (which shall remain unnamed) and am spending the summer clerking for a Magistrate Judge in the District Court for the Southern District of Ohio. Having started to evaluate the merits of my first habeas petition, I was put in touch with more philosophic sentiments regarding the criminal law and, more specifically, the cultural defense. The post is rather long, and much longer than I expected, and for that I apologize. However, I do welcome comments, criticisms, and other correspondence at PVesque@hotmail.com.

Best,
PV

Over the past several decades the use of cultural evidence in criminal trials has been markedly more prolific and, to a great extent, successful, in mitigating a defendantís punishment.* In raising a cultural defense, the defendant, most often an immigrant or refugee, seeks to introduce evidence of his foreign cultural background and values in an attempt to exculpate himself from liability or, at the very least, mitigate his punishment.** The practical implication is that the defendant, because of his background or cultural upbringing, either did not intend to commit a crime or did not know that he did in fact committed a crime.*** Essentially, the defendant is claiming that he did not have the requisite mens rea, or mental state, to commit the proscribed act.

*At the outset, the informal use of cultural evidence, which is the current norm in these types of criminal trials, must be distinguished from a formal cultural defense, for which I advocate. Recognizing that this distinction is not always necessary, however, I use the term "cultural defense" loosely and interchangeably to refer to both notions.

*** Indeed, it very well may be the case that the act committed by the defendant was not a crime in his native country or, if a crime, still considered an honorable act warranting only moderate punishment.

While the cultural defense is not without critics and detractors, the central tenets behind the defense are attractive: it bespeaks a commitment to multiculturalism and a pluralist society and implicitly sanctions a progressive criminal justice system. Moreover, when observed through the lens of moral relativism, the idea that because there are no objective truths and all morals are relative and subjective, the cultural defense seems to take on an even greater significance: it is the practical application of the Anglo-American criminal law's commitment to individualized justice.

Notwithstanding this commitment, other primary principles of the Anglo-American criminal justice system at once reject and accept the cultural defense. The criminal justice system implicitly rejects the notion of a cultural defense through maxims such as ignorantia legis neminem excusat: ignorance of the law excuses no one. However, Anglo-American criminal law simultaneously holds that in order to be convicted of a crime, the defendant must have the prescribed mens rea.

Given the ambivalence of the Anglo-American criminal justice system and the valid arguments both for and against the cultural defense, it is this author's contention that arguments for an absolute adoption or prohibition of the cultural defense are misplaced. A delicate balance must be struck between the objectivism of the criminal law and the moral relativism considered necessary in our pluralist society. The cultural defense, when applied as an affirmative defense under select circumstances, strikes this balance and, accordingly, deserves to be recognized by the American judiciary. What is obvious here at the outset is that the recognition of the cultural defense must have limits, notwithstanding the ideals espoused by multiculturalism and individualized justice.

The brief review of relevant cases demonstrates that defendants have introduced evidence of their cultural background and values to demonstrate that their actions were dictated by their native cultural norms, traditional practices, and/or values. In nearly all cases, the courts have admitted evidence of the defendants' culture which, in the end, has had the effect of mitigating the punishment imposed on each defendant. That this is a step in the right direction for the Anglo-American criminal justice system in recognizing a culturally pluralist society is without question. However, that step may simultaneously be too short and too long.

While the courts generally have permitted the defendant to introduce cultural evidence, the rationale supporting the courts' decisions have differed greatly. Some courts have admitted cultural evidence on grounds that it tended to show temporary insanity. Other courts have admitted the evidence on grounds that it tended to show provocation. It is certainly within the realm of reason that a future court would admit evidence that would tend to show excuse. To be sure, the underlying issue of each of these rationales is clear: whether or not the defendant had the requisite mens rea. However, the standards for proving insanity, self-defense or provocation, and excuse vary, and the inconsistent manner in which these cases are approached by the courts has the potential to yield different results for similarly situated defendants facing similar charges. This inconsistency could lead to unpredictability in the criminal law, a facet at odds with the objectivism of the criminal justice system. In addition, the inconsistent results would also run contrary to the twin aims of multiculturalism and individualized justice.

Nevertheless, adoption of a formal cultural defense is not well-received by many commentators. While these critics largely share the same arguments, the principle argument against a formal cultural defense is that its use and practical effect undermines not only the fundamental principles of the criminal law, but, in more general terms, the basic principles of equality. Subjecting a particular group of persons to one set of laws and another group of persons to a separate set of laws, they claim, will lead only to prejudice and inequality. Detractors of the cultural defense also cite issues relating to fairness and a rational need for deterrence.

Likewise, traditional arguments in favor of a formal cultural defense are largely uniform amongst its proponents. The two arguments on which its supporters most heavily rely are the cultural defenseís commitment to multiculturalism in a pluralist society and the value of individualized justice. Other arguments such as fairness, consistency, and the rather limited value of deterrence have also become prevalent in promoting the cultural defense.

In the field of academia, there are two articles which sit at the extremes of the continuum of commentators advocating for and against the adoption of a cultural defense. On one end is Valerie Sacks, whose article, "An Indefensible Defense: On the Misuse of Culture in the Criminal Law," posits that the cultural defense will actually "promote prejudice and inequality" rather than lead to a greater sense of equality in a pluralist society. Sacks also contends that the "distinction between... to whom the cultural defense is available and... to whom it is not is fuzzy [and] problematic... "

Sacks' latter argument has merit. And it is the purpose of this post to explicate to whom the cultural defense is available and to whom it is not. However, with regard to Sacksí former argument, it inherently denies what it means to be a pluralist society. What her argument suggests is that equality can only be achieved through a single, controlling value system. Quite the contrary, the cultural defense is a manifestation of tolerance in a pluralist society, one that is accepting of values held by a wide variety of people and cultures; it is a commitment to individualized justice.

At the other end of the continuum sits a 1986 Harvard Law Review Note entitled, "The Cultural Defense in the Criminal Law" (hereinafter "the Note"). The Note concludes by stating that the criminal justice system is at present ill-equipped to deal with cultural issues. In an attempt to provide guidance to the courts when dealing with cultural issues, the Note proposes various factors to be considered by the court when deciding whether raising the cultural defense should be permissible.

The first group of proposed factors aims at balancing the twin aims of cultural pluralism and individualized justice with societyís interest in self-preservation and self-protection. Factors to be balanced include the probability of recurrence and the severity of the crime committed. As the chances of recurrence increase, so, too, does societyís interest in deterrence if society is to maintain social order. With regard to severity, three separate sub-issues are presented. First, was the crime or prohibited act victimless? Second, if there was a victim, was the crime or prohibited act confined to voluntary participants within the culture? And, finally, if there was a victim, was serious bodily injury or emotional harm inflicted?

The balancing of recurrence probability and societyís need for deterrence is, on its face, like the balancing of the severity of the crime and societyís interest in social order: they are both legitimate. However, there are underlying issues which make both of these balancing attempts futile. The overwhelmingly large majority of cases in which the cultural defense is raised or in which cultural evidence is introduced concern a spouse who has killed another spouse or a parent who has killed his or her children. Moreover, the actions of the spouse or parent are dictated by cultural values or cultural principles. And therein lies the rub: there is relatively low deterrence value of the crime or proscribed act, regardless of its severity, when the crime or prohibited act is either mandated, endorsed, or accepted by the defendantís native culture (or, like oyaki-shinju, which is not totally accepted in Japan, but is not punished, either).
Accordingly, the balancing of the probability of recurrence with societyís need for deterrence and the balancing of the severity of the crime with societyís interest in social order is problematic. Recurrence probability and severity of the act, in and of themselves, are not variables that are affected by the criminal justice systemís attempts to deter and maintain social order; rather, they are dictated by cultural mandates or normative cultural practices.

The second group of proposed factors aims at maintaining social order. The factors to be considered include "identifiability, degree of self-containment, and the size of the defendantís cultural group." "Identifiability" of the defendantís culture and the claimed cultural value or principle is, according to the Note, critical in raising the cultural defense. Without a clearly identified culture and pronounced cultural values, it would be more difficult to apply the defense. "Self-Containment" is also important, according to the Note, because it insulates the possible harm within that cultural community and minimizes the problems that stem from a lack of deterrence for proscribed acts. Finally, the size of the defendantís cultural group is important because, aside from the matter of "identifiability," exempting a large number of persons from proscribable conduct would send a message to the population at large that such conduct is acceptable.

However, what necessarily happens if the defendantís culture or cultural value is somehow less identifiable? Should the court approach the defendantís claim skeptically when assessing the honesty and validity of the defense, or should the court automatically refuse to allow cultural evidence because of the cultural value is less identifiable? This author contends that the former seems to be the best approach and the latter is simply draconic. It is not clear, though, from the Note what the judgeís next step would be in this easily hypothesized situation. Most obviously, it would be a clear mistake not to permit the defendant to raise the cultural defense simply because the practice in which the defendant engaged was more obscure than practices in which other defendants engaged who were permitted to raise the defense. It is this type of "yes-no" test that has the potential to lead to oversight, bias, and, at the extreme, even abuse. Accordingly any balancing test must provide for varying degrees of cultural evidence and an adequate manner in which to balance the evidence.

The third proposed inquiry pertains to the level of influence the defendantís culture had on his behavior. The Note suggests that the court, in determining the amount of influence the defendantís native cultural values had on his behavior, might direct an ancillary inquiry into the degree of the defendantís assimilation into mainstream culture. For instance, "[t]he less assimilated the accused, the more compelling are justice-based arguments that it is unfair to punish her for not complying with the law. Moreover, the less assimilated the
accused, the more a cultural defense will encourage pluralism by maintaining a spectrum of widely divergent values."

However, while this may be true, it is nonetheless problematic because the inverse does not necessarily logically follow. That is, just because the defendant is more assimilated into mainstream culture, whatever that might mean, does not mean that his cultural values have any less influence on his behavioral and psychological patterns. Moreover, simply because a defendant is more assimilated into mainstream culture does not make it unfair for punishing him when his actions are dictated by his native cultures values. The essence of the argument, then, is qualitative, not quantitative. As such, an inquiry into the general level of assimilation into mainstream culture, while it may be useful to some extent, is a much more complicated and thorny inquiry than the Noteís author has suggested. More to the point, this particular inquiry can not provide for varying degrees of assimilation because not all points on the continuum necessarily hold true.

The final inquiry proposed aims at maintaining cultural pluralism and is focused in this regard on the importance of the value the culture places on the crime or proscribed act. In other words, the more important the value or principle is within that culture, the more protection that value should receive and, as a consequence, the more valid the cultural defense becomes.

However, similar to the third inquiry above pertaining to the level of the defendantís assimilation into mainstream culture, the inverse does not automatically hold true. Solely because a cultural value is considered less important or less valuable does not mean that it is less worthy of protection. However, the Note implies that cultural values or principles that are in some respect less important in the native culture are worthy of less protection by the Anglo-American criminal law. That this might be a means to an end for smoking out illegitimate claims of cultural values is certainly one thing. But to suggest that because a value is placed lower on the sliding scale of importance in the native culture it receives less protection undermines what it means to support multiculturalism and individualized justice. In addition, the final inquiry does also does not provide for varying degrees of value because, like the inquiry into assimilation, not all points on the continuum necessarily hold true.

In the end, the factors proposed for consideration in the Harvard Law Review Note when determining whether the cultural defense is viable in a particular case are more consistent with finding a balance between the objectivism of the criminal law and the moral relativism of multiculturalism. However, the inquiries are either internally inconsistent, impractical, or too rigid to be applied consistently. Moreover, what the Note proposes is not so much a balancing test for permitting a defendant to raise a cultural defense, but rather the level of significance the court should attach to various types of cultural evidence. It is this type of balancing that could lead to more inconsistent results than has been yielded by the present system, which has no formal cultural defense, only an informal structure for introducing cultural evidence.

As such, this post advocates a much tighter, more organized standard that simultaneously allows for variation of degree in the level of evidentiary significance and probative value. To first set some basic parameters, the cultural defense as proposed below is an affirmative defense, not a simple defense, to be raised by the defendant in his Answer. The normal rules of criminal procedure should apply, and if the defendant does not raise the cultural defense, he should lose the right to raise the defense later in the litigation. Because the cultural defense is an affirmative defense, the defendant will have the burden of proof as to all matters pertaining to the admission of cultural evidence.

Additionally, the cultural defense should only apply to crimes or prohibited acts which, though crimes under Anglo-American criminal law, are either mandated, accepted, condoned, or are nonetheless practiced in the defendantís native culture. While this seemingly will Balkanize the criminal law between immigrant Americans and non-immigrant Americans, what must be distinguished are those acts which are committed because a defendantís native cultural values have dictated or accepted such actions and those acts committed simply out of ignorance of the law.

This proposed test, as aforementioned, is two-tiered. The first tier, or the judicial tier, the judge, in camera, examines the cultural evidence to be propounded by the defendant. The judge will examine the evidence in light of various factors that have been adduced above: probability of recurrence, the need for deterrence, cultural identifiability, level of self-containment of the proscribed act, size of the defendantís cultural group, and the value of the act in the defendantís culture. Regardless of what the judge decides with regard to the weight of the evidence, all cultural evidence will be admitted at trial, excepting only that evidence that is ruled to be prejudicial, cumulative, irrelevant, or likely to confuse the jury. What the judge will decide, however, is the nature of the inquiry under the second tier, which is reserved for the jury. The judge will decide what level of scrutiny the jury will subject the evidence during deliberation.

There are three levels of scrutiny from which the judge may choose when sending the evidence to the jury for deliberation. The judge should choose appropriate level of scrutiny based on the quantity and quality of the cultural evidence presented by the defendant. The most stringent level of scrutiny to be undertaken by the jury concedes that societyís interest in social order and self-preservation are compelling interests. Thus, in order for the jury to either acquit the defendant or mitigate the defendantís punishment, the defendant must show by clear and convincing evidence that (i) his actions were mandated by his native culture; and (ii) there was no other manner in which he could have achieved his desired end without committing the proscribed act.

The most stringent scrutiny is to be used in cases where evidence of the defendantís cultural practices or values is slight; where the defendantís culture or cultural values are less identifiable; where the cultural practice is not of a high level of social or cultural significance or importance; where the cultural practice may not be self-contained; and/or where the defendant is or should have reasonably been expected to be more assimilated into mainstream culture. None of the evidentiary considerations are controlling; rather, the inquiry is directed at a totality of the proffered evidence.

Under this most stringent standard, what the jury is not being compelled to do is give less weight to the defendantís culture or his cultural values. Rather, there is simply less credible evidence presented as proof of the defendantís claims. There must be a check and balance in place to smoke out illegitimate claims of cultural values. As such, the judge and the jury have the right to be skeptical about the nature of the culture and the cultural practices and values, and thus weight the evidence accordingly. The judge and jury simply cannot be expected to act as historians, anthropologists, and sociologists in addition to presiding over or deliberating the matter.

In these situations, moreover, giving social order and societal self-preservation more weight does not run against the principles of multiculturalism and individualized justice. If anything, this system pays more attention to the goal of individualized justice as it accounts for varying degrees of different types of evidence, each of which is peculiar to the defendant and his culture.

The least stringent level of scrutiny also concedes that society has an interest in social order and self-preservation; however, under this low level of scrutiny, that interest is merely a legitimate one. For a defendant to prevail or even mitigate his punishment under this least stringent level of scrutiny, he need only show by clear and convincing evidence that (i) his act was consistent with his native cultural values and principles; and (ii) a reasonable person in the defendantís position would have acted similarly.

This least stringent level of scrutiny is to be applied when the cultural evidence propounded by the defendant thoroughly identifies his culture, cultural values, and cultural practices; when the cultural values and practices identified by the defendant are of such immense social or cultural importance in his native culture; when there is a high degree of self-containment; and when the defendantís assimilation into mainstream culture is or should reasonably be expected to be very low. Again, no one piece of evidence is controlling; rather, the inquiry is directed at a totality of the proffered evidence.

Under this standard, the jury is not compelled to give any less weight to societyís interest in social order or self-preservation. Rather, the jury must recognize, in the interests of multiculturalism and individualized justice, the fact that the proscribed act committed by the defendant is honored, accepted, condoned, or even mandated, by his native culture. Recognizing that fact, and taking into consideration a level of tolerance for other value systems and beliefs in the community, the jury should appropriately apply the facts to the standard.

The final level of scrutiny is an intermediate one, a level of scrutiny which lays claim to elements that may be found in either of the polar levels of scrutiny. For instance, it may very well be the case that an obscure value from an even more obscure culture will have the greatest social esteem in that culture. Or, conversely, a defendant may be a native of a highly identifiable culture but the practice in which he engaged was rather obscure. In cases such as these, depending on the quantity and quality of other cultural evidence, it would be difficult for the judge to determine whether to give the evidence to the jury for deliberation under the most or least stringent level of scrutiny. In the interest of preservation of this system, and in the interest of a commitment to a pluralist society, the judge cannot simply decide whether to instruct the jury to use the most or least stringent level of scrutiny on a whim. As has been demonstrated above, obscure practices in a given culture may nevertheless be highly valuable and commonplace practices in a given culture may nevertheless be less socially valuable.

As such, under the intermediate scrutiny, it is conceded that society has an important and substantial interest in maintaining social order and in self-preservation. For the defendant to prevail or to even mitigate his punishment, he must show by clear and convincing evidence that (i) the proscribed act committed was dictated by cultural mandates; or (ii) that the proscribed act committed was consistent with cultural practices or values.

To be sure, there is substantial latitude for the judge and the jury under this intermediate scrutiny standard. However, this given latitude is consistent with the ideals espoused by multiculturalism and a commitment to a pluralist society and with the objectivism of the criminal law. It is rightful or, at the very least, prudent, for the jury to make this final decision, as it is in the best position to make such a decision. Giving the decision-making process to the jury puts the decision in the hands of those living in the community in which the act took place. In this regard, the jury serves as a better guidepost for the local communityís mores and tolerance of other value systems.

From a jurisprudential standpoint, the philosophical underpinnings for the basis for the cultural defense rest in moral relativism, the idea that everyoneís values (or, better stated in this context, every cultureís values) are as valid as any other, so it is inherently wrong to judge those from different cultures when their value system conflicts with the Anglo-American value system. The Anglo-American criminal justice system, however, is built on principles of objectivism that do not necessarily wholly mesh with relativistic thought. The competing arguments are both compelling: advocates for the cultural defense champion the cause of multiculturalism and a pluralist society that is accepting of divergent values. Additionally, arguments for the cultural defense promote the criminal lawís existing commitment to individualized justice and fairness.

Opponents of the cultural defense, however, maintain that the foundation of the criminal law system and the fundamental principles of equality and justice are undermined when a select group of people are exempted from the laws of general applicability. Indeed, there is a danger of Balkanization of the Anglo-American criminal justice system as non-immigrant Americans could potentially be subject to one set of laws while immigrant Americans could be subject to a different set. Some commentators would go so far as to say that, in fact, each immigrant could become a law unto himself. Despite these arguments, a two-tiered system of evaluation of the evidence, first by the judge, then by the jury under a judicially-selected standard, is a workable system with built-in checks and balances. The judge will make the preliminary decision after hearing the cultural evidence as to what level of scrutiny the jury will subject the evidence. The juryís deliberations, then, should be guided by the standard of the particular level of scrutiny and the facts should be applied accordingly.

While this system may certainly be subject to criticism, it is only one of a few proposals that fit in the middle of the continuum of voices advocating for or against the adoption of a formal cultural defense. Many voices at one end give short shrift to the goals of multiculturalism and individualized justice, either discounting their relevance or arguing that their practical application is unworkable. At the other end of the continuum are voices that promote a pluralist society to such a point that fairness becomes illusory. The proposal enunciated in this paper, however, gives due regard to both arguments and does so in a way that simultaneously respects divergent value systems and cultural beliefs and the objectivism and aims of the criminal justice system.

May 17, 2005

I Can Make Anything Boring

Like the judicial opinion that clarified what "'hos" were by citing Ludacris, the decision in Moe v. Doe has gone beyond bloggers' notice to that of the general legal public (at least as signified by its appearance in my classmates AIM away messages). The normal human curiosity about a suit for penile fracture incurred during sexual activity aside, the case had two other interesting aspects for me.

First, I wondered what the rules for getting a case to be named pseudonymously were. Presumably not all cases potentially embarrassing to the plaintiff and particularly having to do with sexual matters are automatically granted Doe/ Moe status. While Norma McCorvey became Roe (and then not), Michael Hardwick had his name on a civil suit that identified him as a practicing homosexual. However, I'd be surprised if anyone who requested anonymity was always granted it regardless of the situation, as the public probably has some interest in knowing who is using the resources of our court system, and the people involved in cases an interest in knowing who the other parties are.

Second, one rationale against using a negligence standard was rejected by the lower court, and this rejection implicitly maintained by the Appeals Court's ignoring it, but I thought it might deserve more consideration than was given.

In granting the defendant's motion for summary judgment, the Superior Court judge concluded that the defendant's interest in privacy created a policy rationale sufficient to elevate the standard of care in this case to recklessness, rather than ordinary negligence. The Superior Court judge referenced the line of cases beginning with Gauvin v. Clark, 404 Mass. 450 (1989), which apply a recklessness standard to sports activities, rather than a negligence standard, because of the likelihood that a negligence standard would chill athletic competition. Although the judge found the Gauvin "chilling" rationale to be inapplicable to the present case, he determined that the alternative privacy rationale was sufficient to elevate the standard of care to recklessness.

I'm guessing that the state has an interest in encouraging athletic competition in order to train its people for warfare -- "the Battle of Waterloo was won on the playing fields of Eton" -- and keep them from getting out of shape.

In contrast, the only sexual activity the state has an interest in encouraging is that between married people, which is likely to further cement the bonds of matrimony and prevent adultery and thus the dissolution of the marital bond that provides mutual support so the state doesn't have to. (I don't hold with the notion that the state has an interest in encouraging heterosexual sex for the sake of procreation, as then we wouldn't be worried about out-of-wedlock births; probably the U.S. is having quite as many babies as we need.)

This is only a guess, however, and one that assumes negligence in marital sexual activity wouldn't be tortious even if negligence in non-marital sex were. On the other hand, unlike a dating relationship, marriage does entail a legally defined duty or recognized standard of conduct, so a duty to avoid injury to one's spouse during sex may be found where none was for a boyfriend.

Moreover, the term "privacy" here seems to be used in a sense quite different from that in some constitutional jurisprudence. For example, the unconstitutionality of banning abortion rests doctrinally on the right to privacy, but the act of getting an abortion is not "private" in the sense that it would merit a lower standard for medical practice than any other procedure. A negligent abortion provider is no less liable for damages than a negligent liposuctioner, though the patient has a right to privacy involved in the former but not the latter. (At least, that's my understanding; I don't think that a state that wished to ban liposuction due to the imbalance of risks and benefits would be prohibited from doing so by the Constitution.)

Say It to His Face

At Armen's Nuts & Boalts, one of his co-bloggers, who posts under the pseudonym "Earl Warren," wrote about the four white men who will serve no more than 30-60 days each for the assault and criminally negligent treatment of a disabled black man. His take was a little different from mine, starting with his "Of course this is what we expect of Texas" attitude, and going on to insult Prof. Kerr.

My favorite part of the Volokh Conspiracy is when one of the libertarian loons professes kinship with a liberal idea, but manges to so stumble over his words that he betrays his far-right fantasies. Case in point, this post by "criminal law scholar" Orin Kerr, where he professes to be shocked, shocked at an "outrageous" and "sickening" story of... racism in the Texas criminal justice system.

In a comment to the post, Kerr invited "Earl" to attend his American Constitution Society panel about race and the criminal justice system. "Please introduce yourself to me at the panel if you do."

Even someone as liberal as myself can identify problems with Earl's take. For example, the Texas death penalty report that he links notes racism in the disparity of treatment based on the victim's race, not the offender's, so that in the Linden case, the verdict likely would have been the same had the four men been black instead of white. The report also finds racism in the composition of juries, which I identified as the factor that, rightly or wrongly, would most affect my feelings about the Linden verdicts: if black jurors also thought that men all under 25 and without criminal records deserved leniency, I'd be more inclined to see this as a normal practice instead of an inherently racist aberration.

But the aspect of the post and Kerr's response that most interested me was the question of whether "Earl" would have written the exact same post had he been posting under his real name, and if not, whether this is a good or a bad thing. The anonymity debate is a hoary old one that predates the internet. Would the authors of the Federalist Papers and other major documents of the Founding era have penned the same works had they been required to sign their real names?

The Constitutional bias toward anonymity as part of one's First Amendment rights is of long standing and recently was upheld again in Watchtower v. Village of Stratton. So the legal aspects are fairly settled and useful only in providing some of the rationales to weigh in determining whether anonymity is good ethics and etiquette.

I write pseudo-pseudonymously; that is, my identity is nominally masked by using only my initials, but people link to my blogs using my real name and I've linked within posts to stuff I've written that has my name on it. However, I would stand by everything I've written insofar as I would not be unwilling to have my full name on it, even the posts I now consider ill-advised. For the most part, I don't sound any stupider on my blogs than I did as an opinion columnist for my student newspaper, where they printed not only my name but also my picture.

May 16, 2005

Society Girls, Please!

Readers who have gauged my politics may be a little surprised to know that I'm on the Federalist Society board at my law school. I took an interest in the organization since the beginning of the year because they offer so many events, and now I am the secretary/ webmaster of the group. It's a minimal position, but I still participate in planning meetings.

Today we were makings lists of the speakers for next school year, and I mentioned halfway through that perhaps we ought to consider some women. The president immediately agreed, but apparently there's a shortage of "name" Federalists who aren't men. This past year we had one (non-legal) female speaker, and next year doesn't look much better unless we get Janice Rogers Brown, about whom "real" federalists get very excited, for whatever reason.

There ought to be enough Federalist women, even aside from the ones mentioned in the NRO piece, to have at least one speak for every three or four men who do. Admittedly the Federalist Society itself is heavily weighted toward men (and white people, as noted in the comments here), but there are female judges, clerks, academics and practitioners who would be able to speak from this particular perspective.

(Make what you will of how this may or may not tie into the "Where are the women?" discussion from earlier this year about opinion columns, blogs, bookshelves etc.)

Today / 05.16.05

Today in History (1918) - Congress passes the Sedition Act, an amendment to the Espionage Act of 1917 that makes criticism of the government a jailable offense. Though upheld by the Supreme Court in Debs v. U.S., the Acts were repealed in 1921.

May 15, 2005

Does It Matter If Jurors Are Black or White?

I had the same reaction as Orin Kerr to the story about Christopher Colt Amox, a 20-year-old white man, punching Billy Ray Johnson, a mentally disabled African American man, causing the latter to fall down and begin vomiting, and Amox and three other young white men putting him into a truck and leaving him on top of an anthill at a tire dump for three hours. One of the men, being an employee of the Sheriff's Department, called in claiming to have found a body. Johnson suffered a concussion that could have been fatal and has caused him to be unable to walk without help or speak clearly, yet the juries recommended suspended sentences for Amox and one of the men, and the other two pled guilty and received 30 days. The judge was bound by jury recommendations, but added what jail time he could.

All of this took place in Linden, Texas, about 100 miles north of my hometown and 150 miles north of Jasper. At least when James Byrd was assaulted, tied to a truck and dragged until he was dismembered, the persons found guilty were convicted of capital murder. Two were sentenced to execution. (For those who think that Texans are racist...)

The Linden district attorney said "the juries' decisions were in line with other juries who sympathize with first-time offenders. [...] 'This is not that horrible of an outcome. They were all convicted, they'll all be on probation, they'll all have a criminal record, they'll all be watched.'" Arvin at Rebuttable Presumption takes a similar view. The Jasper juries included African Americans; I haven't found any information about the racial composition of the Linden juries, and I can't shake the feeling that I would find the DA's claim more plausible if I knew that it hadn't been an Emmett Till-esque all-white jury. Which is not to say that the four men involved were motivated by racism, nor were they charged with a hate crime, and Arvin appears not to realize that Kerr may be talking about racism by the juries in undervaluing the victim, not the by defendants in committing the crimes.

Despite having done horribly on my criminal law exam -- it's the first test I've had in law school after which I thought, "I may have failed that" -- the course actually did a lot to increase my interest in the subject, which I can't say for Contracts, the low grade point of last semester.

Under the Texas Code, Amox committed aggravated assault, even with only one punch, due to the serious bodily injury. Ordinarily this is a second degree felony, but because he did it to a disabled person it became a first degree felony (Sec.04). I actually didn't know that it was a higher grade of assault to do injury to a person 14 or younger, 65 or older, or disabled person.

The Code's definition of disabled is much narrower than, say, the ADA's: "person older than 14 years of age who by reason of age or physical or mental disease, defect, or injury is substantially unable to protect himself from harm or to provide food, shelter, or medical care for himself." I don't know enough about Johnson to say whether he was correctly designated as disabled within the meaning of the statute.

The three other men could be charged under the same section, for causing injury through omission when they had a duty to act on Johnson's behalf because they secluded him from the aid of others. (Belated crimlaw moment: This duty to act can exist regardless of whether the person is a child, senior citizen or disabled.)

These charges are serious, and they could have carried heavy penalties. Certainly the men will have unfair records relative to their wrong-doing, as Amox, the person who committed the assault, was convicted only of a misdemeanor, while the others were convicted of or pled guilty to third-degree felonies. Whether they have received insufficient punishment, considering mitigators such as eventually ensuring that Johnson received care, their youth and lack of previous criminal records (and white supremacist ties, unlike the Jasper offenders), is not entirely clear. At this point, I really am more inclined to think the jury is guilty of racism than that the four men are.

Writing Competition

The topic isn't horribly uninteresting, but I'd much rather write a song parody. This was inspired by one disgruntled Law Reviewer's remark, "Ah, writing competition, the pie-eating contest in which the prize is... more pie."

May 10, 2005

Unexpected Benefits of Bob Jones

I have a criminal law exam in 12 hours, and I came home three hours ago intending to go to sleep, but I can't. At the same time, I can't stand to look at my outline or hornbook again, so I'm killing time online and listening to the radio. If my third attempt at lying down and counting sheep doesn't work, I'm going to watch Whale Rider.

I've written before about the potential advantages of attending a religiously-oriented law school, insofar as such schools seem to place a much greater emphasis on integrating ethics into education. Now I wonder if a sectarian school whose dictates went beyond the classroom would be helpful.

Consider Bob Jones University, where I apparently would not be able to listen to any radio stations except those with news and classical (as even contemporary Christian music is prohibited at BJU); use my computer's DVD player; or even check my non-BJU email accounts. I wouldn't even be able to stay up late reading G.K. Chesterton, as all lights must be out at midnight.

Perhaps this sounds like a strict regime, but think of how much work these students must get done, and how much sleep they get! At least one procrastinating yet tired law student envies them. (Yes, I realize that I could live like this with a little self control, but if we all did what we ought through self control, we wouldn't need laws to protect "public morality." Also, as a hardcore papist, Chesterton probably wouldn't be recommended reading among evangelicals, fundamentalists and Baptists.)

New De Novo Bloggers

With the graduation of 3L bloggers Chris, Jeremy and Nick imminent, De Novo is looking for law students with something to say. Whether you like to write seriously or humorously, personally or even anonymously, we'd love to have you post here. Interested? E-mail submit -at -blogdenovo -d0t -org.

Today / 05.10.05

Normal Humans Enjoy This?

THE BOILERPLATE: ''In no event shall the trust continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy Sr., the late Ambassador to the Court of St. James.''

WHERE IS IT? In documents for more than 6,000 commercial trusts worth billions of dollars.

WHY IS IT THERE? English law dating back to the 1680s, The Rule Against Perpetuities, set the terms for how long a patriarch could exert control over his heirs. Lawyers for commercial trusts apply the same rule.

May 08, 2005

VE Day kinda Like 56(c) Day

The Armen sitting on my left shoulder clearly wants me to break from studying and actually go use a restroom instead of soiling my pants while the Armen on my right shoulder is whisperring, "Double H....Double H." As a fair and neutral arbiter, I've decided to take a break by writing a blog entry that compares WWII to the Fed. R. Civ. P.

May 06, 2005

My Interpretation Can Kick Your Interpretation's Ass

Yet again, not having Con Law as a required first year course hamstrings me a bit (not to worry, I just came out of an exam for an elective course that was easily the first law school exam I've taken where I felt I wrote something coherent and remotely intelligent given the time constraints). Todd Zywicki notes at the VC that an Alabama judge is making the argument that Marbury v. Madison did not intend to give exclusive power of interpretation to the courts (but executives and legislatuve branches also share in that duty).

Again I'm no expert and I hope those with expertise in the field will opine, but there are a couple of ironies at work here. First, I don't think anyone contests that this was A view of con interpretation at the time of Marbury, before it, and after it. Yet (after a cursory review of my Companion to the Supreme Court) even I know that the effect of Marbury was to limit the power of executing laws that the judiciary found incompatible with the con. Or put another way, what the hell is the point of protecting speech, press, and religion if they are to be defined by the very same entities from which they are protected. Might as well let the fox build the chicken coop. The second irony is that (again thanks to the Companion) Marbury was decided at a time when the Republican party controlled the legislative and executive bodies of the United States and the various states, and felt the Federalists were using the judiciary to place a roadblock on their agenda (if this sounds familiar...it shouldn't). I'll let people draw their own inferences from this.

May 03, 2005

From One King's College to Another

Today I got another email that made me think, "If only I hadn't already committed elsewhere for the summer..."

Campus Crusade legal department is in need of one or two law students (preferrably 2Ls) who would be willing to come to NY for the summer to work on their case against the State of New York concerning a dispute over the recognition of The King's College.
This is a unique situation and an opportunity for a person or two who would like to get some major litigation experience in the First Amendment world. The job will involve research, drafting pleadings, and assisting the lawyers with discovery. It is anticipated that there will be as many as 20 depositions taken during the summer, along with extensive document discovery.

At least in TKC's telling, the controversy seems to center on one member of the New York Board of Regents, which determines which schools are accredited universities. Oddly enough, one of the issues this member, Dr. John Brademas, raised regarding The King's College is that its name is misleading and an appropriation of Columbia University's name. I momentarily had a vague thought that I'd heard the name "King's College" before, but actually more with the school in London than with my own. The allegations made against TKC regarding the size of its library, endowment and faculty are more serious, but nonetheless seem motivated more by a desire to single out an evangelical Christian school than by concern over the quality of the students' education, as TKC's standards in these areas are no lower than those of many accredited schools.

I wouldn't choose such an educational experience for myself at the graduate or undergraduate (like Prof. Bainbridge, I drank the TJ Kool-Aid) levels, but I wouldn't want to block other people's access to it, which a lack of secure accreditation certainly will do.

If you're a non-law student or a lawyer who's been out of law school for a few years, you may be wondering why you need to print out your outlines, notes, Gospels, etc. to use on an exam you'll be taking on a laptop that stores those documents. The answer, of course, is ExamSoft. Supposedly this is the most common software to secure computers during exams--the idea being that you shouldn't be able to e-mail someone at Columbia Law during the exam to get the ultimate answer to a Rules Against Perpetuities question...or something along those lines. To reach this end, ExamSoft locks the rest of your computer and allows you to type your exam on its word processor.

If the law does not concern itself with trivialities, law school exam software programmers certainly don't either. I'm beginning to doubt everything I've learned about the Romans and starting to conclude that "de minimis" was actually an adjective used to describe ExamSoft. It has about as much features as a slate board, which of course means those of us raised according to the Scriptures of MS Word spend about 75% of any given exam sweating over this new "thing" that we're typing on.

The most glaring shortcoming is the disabled spell checker. You can select the dictionary that you want the spell checker to use (for me it's usually American English, except during Property, where I switched to Chaucerish), but you can't use the spell check function. It's just disabled (you know that light gray color that you can't click on). Your law school might be kind enough to allow you to check to see if you've spelled "seisin" correctly, but not here. Considering I've relied on some engineering geek's language algorithms to guide me through writing in school thus far, I find it a bit troubling that when it REALLY counts, this indispensible tool is taken from me. I had my Black's Law Dictionary with me (I learned after the first semester) so I was able to nail the question on the effect of villeinage on property law...with no spelling errors to boot!

Aside from choosing your font (the choices being Times New Roman or Not Times New Roman) and the font size (tall, grande, or venti), there's little else you can do to alter the look or formatting of your text. I had to beg and plead for an hour to get the CAPSLOCK key to work. Even then it only worked about as consistently as the sHIft key. You can't bold, underline, or italicize without advanced programming knowledge in JAVA. Even then, you better know how to debug your code. Hyperbole aside, these are literally the only formatting you are permitted on ExamSoft (and I think you can right, center, or left justify your work. In case you want to use Roman letters to write in Aramaic or something.)

I wanted to draw a kickass bitmap discussing the benefits of adverse possession and insert it into the exam, but no such luck. After writing the 12th chapter on the injustices of current landlord-tenant laws, I wanted to insert a table of contents to aid the professor, but of course, you can do no such thing on ExamSoft (being the clever shrew that I am, I hand wrote one on a bluebook and turned it in separately. The said blue book also contained graphs hand-copied from MS Excel and the PowerPoint slides I would have liked to have created on "The Intersection of Non-Euclidean Geometry and Euclidian Zoning.")

I suppose I need not worry, in no time at all I'm sure Microsoft will roll out a crappier, more expensive version of ExamSoft that will proceed to dominate 99.999% of the secure exam taking software market...including Djibouti's.

May 02, 2005

The Libertarian Constitution

In a discussion of the privacy line of cases (Griswold-Lawrence), a constitutional law classmate remarked that he didn't see why we didn't just use the 9th Amendment -- "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" -- to avoid the textualist problem of privacy rights' being penumbral. To say that the states could deny all rights that were not specifically enumerated in the Constitution surely conflicts with the 9th.

I replied that this would give us a libertarian constitution, which he initially didn't see as a bad thing until I pointed out that such a constitution might also deny government the ability to regulate economic liberties. The right of contract is also an unenumerated "right," and it would appeal to originalists as being much more likely to have been contemplated by the elite white males who wrote the 9th than the right to contraception or abortion.

Since the New Deal, the federal government has regulated economics through the necessary and proper exercise of commerce clause power (Darby, Wickard). If contract were raised to the same fundamental right level as privacy, Congress would face a much higher standard (strict or at least heightened scrutiny) in setting the minimum wage or maximum hours than the current rational basis test demands. Assuming incorporation, so would states that sought to regulate the same matters for the sake of the general welfare -- if they even wanted to make such regulations, as many states likely would have a "race to the bottom," setting the lowest minimum wage and highest maximum hours in order to attract business.

In short, those who want to guarantee certain social liberties, but not economic ones, should look at who supports renewing the 9th Amendment -- most prominently of late, Randy Barnett -- before deciding that it's their new best friend. If the 9th Amendment is not an inkblot, it appears to have the potential to be a can of worms.